CIVIL SERVICE COMMISSION, CITY AND COUNTY OF DENVER, COLORADO Case Nos. 11 CSC 03 and 11 CSC 04 ________________________________________________________________ In the matter of:

Devin Sparks (07068) Officer in the Classified Service of the Denver Police Department

Petitioner.

and

Randy T. Murr (95106) Officer in the Classified Service of the Denver Police Department

Petitioner.

________________________________________________________________

FINDINGS, CONCLUSIONS, DECISION AND ORDER ________________________________________________________________

INTRODUCTION Pursuant to Rule 12, Sec. 4.B., an en banc panel of three hearing officers, Susan

J. Eckert, Daniel C. Ferguson, and Lawrence B. Leff (the “Panel”), presided over the evidentiary hearing in the instant matter. Susan J. Eckert served as the Chief Hearing Officer for administrative purposes by agreement of the Panel. The hearing was held on this consolidated appeal during January 7 through January 18, 2013. Sean T. Olson, Esq., represented Petitioners, Devin Sparks and Randy T. Murr. Assistant City Attorneys Robert A. Wolf, Esq., and Richard A. Stubbs, Esq., represented the City and County of Denver and Former Manager of Safety Charles F. Garcia.

Procedural History and Background

On July 19, 2010, then Manager of Safety Perea issued his discipline for Officer Sparks that consisted of a loss of twenty-four (24) hours for violation of RR-102.1 as it pertained to Operations Manual Section 109.01(2) a.1., Quality Requirements. Manager of Safety Perea did not issue any discipline for any alleged use of force in connection with the arrest of Michael DeHerrera. At the same time, Manager of Safety Perea issued discipline for Corporal Murr of a three (3) day suspension for a violation of RR-102.1 as it pertained to Operations Manual Section 109.01(2)a.1., Quality Requirements. Neither Officer Sparks nor Corporal Murr appealed those disciplinary orders. Manager of Safety Perea rescinded that discipline effective August 20, 2010, and reopened the investigation into Officer Sparks’ and Corporal Murr’s conduct. Soon thereafter Manager of Safety Perea resigned.

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After the completion of a new investigation that included the re-interviewing of

Officer Sparks and Corporal Murr, substantial analysis of the (“High Activity Location Observation”) HALO camera video and the new evidence of witnesses Vanessa Shaver and Hasan Aoutabachi, the matter was sent to the new Manager of Safety Charles Garcia for a disciplinary decision. Manager of Safety Garcia issued a new disciplinary order effective March 25, 2011, finding that Officer Sparks should be suspended for thirty (30) days for a violation of RR-306, Inappropriate Force as to Sparks’ arrest of Michael DeHerrera. In addition, Manager of Safety Garcia terminated Officer Sparks for a violation of RR-112.2, Commission of a Deceptive Act. (Respondents’ (“Res.”) Exhibit “Ex.” 261). Manager of Safety Garcia also terminated Corporal Murr for a violation of RR-112.2, Commission of a Deceptive Act relating to representations Murr made as to Sparks’ handling of the DeHerrera arrest. Corporal Murr, however, was not disciplined for any use of force or deceptive acts in conjunction with his arrest of Shawn Johnson.

On April 4, 2011, Officer Sparks and Corporal Murr filed timely appeals of Manager of Safety Garcia’s disciplinary orders with the Commission. The Panel consolidated these appeals. In the intervening time period, the Panel dismissed the new disciplines issued by Manager of Safety Garcia on procedural grounds without reviewing the merits of the underlying disciplines but was reversed by the Commission. The Commission remanded the consolidated appeal to the Panel to consider the merits of the new disciplines on April 10, 2012. The Panel held a hearing over the course of January 7 through January 18, 2013. The Panel closed the hearing and the record in the consolidated appeal on January 18, 2013.

At the hearing, the Panel heard testimony from the following witnesses, in order

of appearance, whose testimony has been reviewed and considered for purposes of reaching this decision: Officer Devon Sparks, Corporal Randy Murr, Expert Witness Greg Meyer, Manager of Safety Charles Garcia, Joe Goorman, Vanessa Shaver, Commander Ron Saunier, Richard DeHerrera, Michael DeHerrera, Manager of Safety Ron Perea, Hasan Aoutabachi, Commander Tony Lopez, Officer Armando Jaramillo, Expert Witness Dr. Darrell Ross, and Former Chief Gerald Whitman.

In addition, the following exhibits were admitted into evidence and were reviewed

and considered for purposes of reaching this decision: Res Exs. 17, 26, 29, 58, 61-68, 70, 76, 78, 80, 84, 97, 98, 117-118, 121, 127, 140, 168, 176, 181, 182, 187, 188, 189, 192, 197, 201, 217, 218, 219, 220, 224, 227, 228, 229, 232, 233, 237, 242, 246, 247, 258, 259, 261, 262, 264, 266, 267, 269, 270, 278-281, 303-313, and Petitioners’ (“Pet.”). Exs. A, B, D, J, K, O, P, Q, R and S.

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THE APPEAL

Devin Sparks

Pursuant to a Departmental Order of Disciplinary Action in Case No. P2009 04015, dated March 25, 2011, the Manager of Safety ordered that Petitioner, Devin Sparks, be disciplined as follows:

That pursuant to the authority vested in me by the Charter of the City and County of Denver, the Order of Discipline recommended by the Chief of the Police Department of the City and County of Denver is modified. You are hereby dismissed from the Classified Service for violation of RR-112.2, Commission of a Deceptive Act. Furthermore, you are hereby suspended without pay for thirty (30) days for violation of RR-306, Inappropriate Force. This dismissal from the Classified Service of the Denver Police Department is effective immediately. (Res. Ex. 261). The rules and regulations at issue in this appeal are as follows (Res. Ex. 278,

Appendix G): RR-112.2, Commission of a Deceptive Act In connection with any investigation or any judicial or administrative proceeding, officers shall not willfully, intentionally, or knowingly commit a materially deceptive act, including but not limited to departing from the truth verbally, making a false report, or intentionally omitting information. RR-306 Inappropriate Force Officers shall not use inappropriate force in making an arrest or in dealing with a prisoner or any other person. DENVER POLICE DEPARTMENT – DISCIPLINE MATRIX CATEGORY F (Res. Ex. 278, Appendix F) Any violation of law, rule or policy which: foreseeably results in death or serious bodily injury; or constitutes a willful and wanton disregard of Department values; or involves any act which demonstrates a serious lack of the integrity, ethics or character related to an officer’s fitness to hold the position of police officer; or involves egregious misconduct substantially contrary to the standards of conduct reasonably expected of one whose sworn duty is to uphold the law; or involves any conduct which constitutes the failure to adhere to any contractual condition of employment or requirement of certification mandated by law. DENVER POLICE DEPARTMENT – DISCIPLINE MATRIX

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CATEGORY E (Res. Ex. 278, Appendix F) Conduct that involves the serious abuse or misuse of authority, unethical behavior, or an act that results in an actual serious and adverse impact on officer or public safety or to the professionalism of the department. Randy Murr Pursuant to Departmental Order of Disciplinary Action in Case No. P2009 04015, dated March 25, 2011, the Manager of Safety ordered that Petitioner, Randy Murr, be disciplined as follows:

That pursuant to the authority vested in me by the Charter of the City and County of Denver, the Order of Discipline recommended by the Chief of the Police Department of the City and County of Denver is modified. You are hereby dismissed from the Classified Service for violation of RR-112.2, Commission of a Deceptive Act. This dismissal from the Classified Service of the Denver Police Department is effective immediately. (Res. Ex. 266). RR-112.2 and the Discipline Matrix Category F at issue in this appeal are set

forth above.

PROCEDURAL ISSUE The consolidated appeal is before this Panel on remand from the Denver Civil Service Commission’s (the “Commission’s”) decision in Kilroy v. Sparks and Murr, issued on April 10, 2012, overturning the Panel’s Decision and Order on Summary Judgment. As a threshold matter in light of this decision, the Panel ruled at the hearing herein that the Panel must address whether then Manager of Safety Ronald Perea appropriately rescinded the original Departmental Orders of Disciplinary Action issued on July 19, 2010, for Sparks and Murr, (Pet. Exs. A and B), pursuant to his Orders Rescinding Department Order of Disciplinary Action on August 19, 2010. (Pet. Exs. O and P).

The Commission answered the following narrow question of law in Kilroy v. Sparks and Murr at 1-2:

whether the Manager of Safety has jurisdiction to rescind and modify a disciplinary order after the ten-day appeal deadline passes and the disciplined officer has not filed an appeal to the Commission. … The Commission determines that the authority to rescind and modify a disciplinary order is necessarily implied by the Denver City Charter’s grant of general disciplinary authority over the Police and Fire Departments to the Manager of Safety.

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The Manager of Safety’s authority to rescind and/or modify a disciplinary order is not without limits. At a minimum, considerations of finality and due process preclude the Manager of Safety from arbitrarily rescinding or modifying a disciplinary order once it has been issued. It is not within the scope of this decision to define the precise contours of the Manager of Safety’s authority in this area. [Emphasis supplied.]. In reaching this decision, the Commission provided some limitations on the

Manager’s broad disciplinary authority at 10, including a temporal limitation requiring that the rescission occur within a reasonable period of time after the discipline has been issued. In addition, the Commission stated at 10:

The Commission’s holding in this case should not be read to grant the Manager of Safety unlimited authority to rescind or modify a disciplinary order no matter how flimsy the basis for modification. [Emphasis supplied.].

The Commission found as a matter of law that the Manager of Safety had jurisdiction to rescind and modify a disciplinary order after the ten-day appeal deadline passed and the disciplined officer had not filed an appeal to the Commission. However, since the Commission was reviewing the Panel’s Decision and Order on Summary Judgment, the scope of the Commission’s decision did not reach any disputes of material fact as to whether or not Manager of Safety Perea acted in an untimely and/or arbitrary manner relying on flimsy evidence to support the rescission of the discipline in the instant case. The Commission’s ruling was limited to its finding that the Manager of Safety had the implied authority to rescind discipline arising out of the Charter. As discussed above, the Commission articulated some limits on that implied authority, but did not apply those limits to the case at hand.

The Commission’s ruling compels the Panel to first reach the important threshold issues of material fact: whether the rescinding of the original discipline herein and the reopening of the investigation by then Manager of Safety Perea was untimely and/or arbitrary because it relied on flimsy evidence. As to the temporal concerns, the decision to rescind the discipline occurred within thirty-one days of the original discipline. As such, the Panel finds that the Manager of Safety acted within a reasonable time period.

As to the evidentiary issue, the majority of the Panel interprets the Commission’s

decision as requiring a relatively low evidentiary threshold akin to some credible new and material evidence as opposed to a traditional higher administrative law standard of “substantial evidence.” The majority of the Panel in light of the Commission’s decision finds that Manager of Safety Perea had a reasonable basis to rescind the discipline due to credible new and material evidence that came to light after the issuance of the discipline.

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Former Manager of Safety Ron Perea testified at the hearing that he based his original decision on what he thought was a complete investigation, but that following his original decision there was an open records request, and that he decided to release investigative information to the public, including the video from the HALO camera. He stated that within twenty-four hours of his decision releasing investigative information to the public he became aware of the interest in this case by the Independent Monitor, and that he spoke to the Monitor, the City Attorney, the Chief of Staff for the Mayor, the Acting Chief of Police in this case, the Chief of Police, and the Mayor, regarding his decision. Following the release of the HALO video, Manager of Safety Perea stated he became aware that there were new witnesses who had come forward; this created the possibility of new evidence, although he testified that he did not know what the witnesses would say. He decided to rescind his original discipline and reopen the investigation in this case, but thereafter, had no further involvement in the new investigation. He denied that political pressure or public outcry affected his decision to rescind and reopen these cases. From the record before the Panel, the only newly available evidence was the testimony of Hasan Aoutabachi and Vanessa Shaver. While the reopened investigation did take additional statements from the Petitioners, as well as from other participants in this incident, all of these persons were, or could have been, known at the time of Manager Perea’s original decision. As to Aoutabachi and Shaver, their testimony added to the record their recollection that they heard Michael DeHerrera say that he was not resisting, as well as their observation that DeHerrera did not resist or attempt to strike Petitioner Sparks, either while talking on his cell phone near the fire plug or after DeHerrera was taken down to the pavement. The Panel has considered the testimony of all witnesses in this hearing, as well as viewing the HALO video and receiving into evidence the enhanced pictures from the HALO video. The testimony of Commander Ronald Saunier was also heard, and his Report, (Res. Ex. 117), dated December 3, 2010, has also been considered. Then Capt. Saunier was called in on August 19, 2010, to do a critical review of the IAB investigation in this matter. His report details his attempts to find additional witnesses and evidence, and his additional interviews of Petitioners. Reviewing his report, the Panel finds that the testimony of Shaver and Aoutabachi provided the only new and material evidence for rescinding the original discipline in this case.

Certain witnesses who were found and were involved in the incident at the 5 Degrees nightclub, were not called to testify at the hearing. A number of officers who responded to the scene were interviewed but had no additional evidence to offer or did not recall responding to the scene. The record also reveals that Sgt. Speelman, on the day of the incident at issue, April 4, 2009, filed a Use of Force Report, (Res. Ex. 80), which contained potential witnesses Leroy Midyette, a street performer, and Joseph Gardner, an employee of 5 Degrees, neither of whom testified. Thus, none of this evidence was used to justify the rescission.

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Based on the new and material evidence of Shaver and Aoutabachi, that could not have been reasonably obtained prior to the issuance of the original July 19, 2010, discipline, the majority of the Panel finds that Manager of Safety Perea did not arbitrarily rescind his disciplinary orders based on “flimsy” evidence. The Manager of Safety had a reasonable basis to rescind the discipline in light of some credible new and material evidence obtained.

The majority of the Panel notes the minority opinion of Panel Member Larry Leff who would have found that the discipline issued by Manager of Safety Garcia should have been dismissed based on lack of sufficient new and material evidence at the time of rescission by Manager of Safety Perea. However, the dissent is applying a more stringent evidentiary standard than as articulated by the Commission. The majority of the Panel finds that there was sufficient new and material evidence justifying rescinding the original July 19, 2010, discipline based on the Commission’s direction in Kilroy v. Sparks and Murr. Lacking any further guidance from the City Charter, the Rules and Regulations and the Commission as to the precise contours of the Manager’s authority and the specific parameters of the evidentiary standards, the Panel is compelled to uphold the August 19, 2010, rescission of discipline based on the Panel’s interpretation of the relatively low evidentiary standard articulated by the Commission -- a “some credible evidence” standard. In the instant case, that is the discovery of new and material evidence from Shaver and Aoutabachi.

FINDINGS OF FACT

The incident, Officers Sparks’, Jaramillo’s and Corporal Murr’s arrest of Michael

DeHerrera (which arose out of the related arrest of Shawn Johnson by the Officers), which is the subject of these disciplines occurred on April 4, 2009, in Lower Downtown (“LoDo”) Denver near 15th and Larimer. Much of the incident was recorded by the HALO video camera that the Department reviewed as part of the investigation and was the main part of the City’s case against Officer Sparks and Corporal Murr at the hearing as well. (Res. Ex. 197). The Panel viewed the HALO video of the incident repeatedly, as well as heard and saw extensive analysis of the HALO video from the City’s expert witness, Greg Meyers (Res. Ex. 280), Petitioners’ expert witness, Dr. Darrell Ross (Pet. Ex. Q), Commander Ron Saunier, still photographs from the HALO video (Res. Ex. 188) and the City’s Forensic Video Analysis Report completed by Grant Fredericks (Res. Ex. 192). In addition to the HALO video evidence, the Panel heard testimony from multiple eye witnesses to the events including Officer Devon Sparks, Corporal Randy Murr, Officer Armando Jaramillo, Joe Goorman, Richard DeHerrera, Michael DeHerrera, Vanessa Shaver, and Hasan Aoutabachi. The record also includes witness statements of individuals who did not testify but whose testimony comprised part of the record before the Manager of Safety and whose statements were introduced at the hearing through the reports of Commander Saunier (Res. Ex. 117) and Sergeant Speelman’s Use of Force Report (Res. Ex. 80). Based on this evidence, the Panel makes the following findings of fact as to the events of April 4, 2009.

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On the night of the incident, Corporal Randy Murr, a fifteen year veteran of the Denver Police Force, was working in off-duty capacity at a LoDo night club called 5 Degrees. Murr had worked at 5 Degrees since May of 2005 (Res. Ex. 117) providing police presence at the club on a regular basis during the night time hours when many of the patrons consume alcohol and at times cause altercations. While working at the club, Murr was dressed in his full police uniform and was carrying his typical police gear and weapons. According to the evidence from Corporal Murr and the reported testimony of Leroy Midyette, Joe Gardner, Gabriel Esquibel, Todd Doughty and Randall Scott Crocker, (none of whom were called to testify at the hearing but were interviewed as part of the record by Commander Saunier as contained in Res. Ex. 117 or Sgt. Speelman in his Use of Force Report as contained at Res. Ex. 80), Corporal Murr was involved in physical altercations with Michael DeHerrera and Shawn Johnson at the club prior to the incident recorded on the HALO video that is the subject of the Officers’ disciplines. DeHerrera and Johnson undisputedly were at the club that night and from many reports including Sgt. Speelman’s Use of Force report (Res. Ex. 80) were intoxicated.

Mr. Crocker provided evidence that he was the Head Bouncer at 5 Degrees and

around midnight received a report of two males using the women’s bathroom. From testimony of record, the Panel finds that DeHerrera and Johnson decided to use the women’s restroom at 5 Degrees causing a disturbance in the women’s restroom and then refusing to leave as directed. The bouncers at 5 Degrees escorted DeHerrera and Johnson out of the club onto the side walk where Mr. Crocker reported they became belligerent with patrons and staff. Mr. Crocker heard Corporal Murr intervene and tell DeHerrera and Johnson repeatedly to leave the area and go home. That is consistent with Corporal Murr’s recollection of his initial interactions with DeHerrera and Johnson. Johnson refused to leave the area, and DeHerrera who was initially leaving, returned to assist Johnson, telling Murr that his dad was a cop and Murr responded, “That’s great, but you still have to go home.” Murr then pushed DeHerrera away, and DeHerrera got more agitated according to Crocker. (Res. Ex. 117).

There are various accounts of what happened between Murr and DeHerrera and

Johnson at this point. Crocker reported that he was not exactly sure what happened, but he thought Johnson attempted to push or punch Murr from behind and Crocker intervened and pushed Johnson away. At that point, DeHerrera and Johnson took off running. The report of Gabriel Esquibel, who witnessed events at 5 Degrees, indicated that he also observed Murr in an altercation with DeHerrera and Johnson. Esquibel believed that Murr was trying to arrest one of the parties and that the other party came from the right side and may have hit Murr. There was pushing and shoving, and Esquibel tried to help Murr. (Res. Ex. 117). Esquibel took off running after Johnson at Murr’s direction after Johnson got away from Murr. This story was confirmed by Esquibel’s friend, Todd Doughty, as interviewed by Commander Saunier. (Res. Ex. 117).

Sgt. Speelman reported that Leroy Midyette, a LoDo street performer, witnessed

events while he was dancing at the corner of 15th Street and Larimer and gave a

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statement that is in Speelman’s report. Midyette saw Murr trying to explain something to DeHerrera and Johnson and that Johnson took a swing at Murr but missed and then DeHerrera immediately jumped in and started trying to punch Murr. Then Johnson and DeHerrera took off running. (Res. Ex. 80). Sgt. Speelman also reported that Joseph Gardner, another bouncer at 5 Degrees whose statement is included in the use of force report, was one of the bouncers who escorted Johnson out of the women’s bathroom after Johnson had allegedly assaulted the bathroom attendant. Johnson resisted going outside and had an altercation with Gardner on the ground. Then Johnson tried to attack Murr from behind and another citizen intervened and was punched by Johnson.

Murr’s report (Res. Ex. 64) is generally consistent with the third party witnesses

as to the preliminary events at 5 Degrees. Murr saw one of the bouncers pushing Johnson out the front door. The bouncer and Johnson went to the ground and were fighting with each other. Murr said he broke up the fight and found out that Johnson had been causing trouble in the ladies’ bathroom in the club and had pushed the bathroom attendant. Murr ordered Johnson to leave based on the request of 5 Degrees’ security. Murr then learned that DeHerrera was out front after having been thrown out of the club for yelling and cussing at the bathroom attendant and was refusing to leave. Murr ordered DeHerrera to leave, and DeHerrera refused and instead punched him in the chest. Then Murr said that he pushed DeHerrera, and DeHerrera fell to the ground. DeHerrera still did not leave the area, but kept yelling and cussing at him. Then Johnson came up and started yelling at Murr, and Murr ordered Johnson to leave at least two more times. Johnson refused and Murr tried to put him under arrest. Johnson then punched Murr in the chest twice. At that point, Murr called for cover officers, and Johnson turned and ran across the street. Murr remembered that an unknown citizen (later identified as Esquibel) ran after Johnson to get Johnson and tackled Johnson across the street into the left front fender of a blue jeep on the corner of 15th and Larimer.

Michael DeHerrera was interviewed at the time about the events by Sgt.

Speelman and gave conflicting and muddled reports in the video interview and appeared to be intoxicated and disoriented as reported by Sgt. Speelman. His statement was not offered into evidence by either party. At the hearing, DeHerrera had very limited recollection of the events and offered no testimony to contradict these witnesses about the preliminary events at 5 Degrees between him, Johnson, and Murr. Johnson was not called to testify nor was any statement offered into evidence. According to Sgt. Speelman, Johnson refused a video interview and said “your officers punched me in the face and threw me on the ground for not tipping some guy in the bathroom.”

By a preponderance of the evidence, the Panel finds that Murr’s report and

testimony, as supported by the third party witnesses as to the preliminary events at 5 Degrees, and his interactions with DeHerrera and Johnson to be accurate. The Panel finds that Corporal Murr was involved in physical altercations with both Johnson and DeHerrera, that both men hit Corporal Murr when he was trying to get them to leave 5 Degrees and go home, and that both men were agitated and belligerent and repeatedly

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refused to leave the club despite multiple requests from Murr. Both men ran away across the street where Johnson was tackled by Esquibel.

At that point, Murr caught up with Esquibel and Johnson who had been taken to

the ground. Murr engaged in efforts to control Johnson on the ground and arrest Johnson. As can be seen on the HALO video, Officers Sparks and Jaramillo arrived at the scene around that time. They had responded to Murr’s Code 10 request for immediate cover and assistance. Sparks, who had joined the Denver Police Force in October 2007 and thus had less than two years experience, and Officer Jaramillo were assisting with Johnson’s arrest. Evidence from Sparks indicated that he was applying his Operational Police Nunchuck (“OPN”) to Johnson’s ankle as Murr was trying to handcuff him. (Res. Ex. 117). At that point, DeHerrera can be seen standing nearby at what has been estimated about 5-10 feet from Officer Sparks having crossed the street while talking on his cell phone. DeHerrera remained close by during Johnson’s arrest talking on his cell phone. At that point, a man in a white suit who was later identified as Joe Goorman, the VIP Manager from 5 Degrees and friend of Corporal Murr, appeared and stood about one foot away from the Johnson arrest area. In the video one can see Murr look up and notice DeHerrera in the nearby area while they were trying to arrest Johnson. Murr looked to Sparks and clearly pointed to DeHerrera. (Res. Ex. 192). There is no audio with the HALO video, so it is impossible from just viewing the video to determine what was said by Murr to Sparks when Murr pointed at DeHerrera.

What was said by Murr to Sparks when he pointed to DeHerrera is a matter of

dispute. Murr testified and put in his statement that he said something to Sparks like “He [DeHerrera] needs to go to jail. He punched me.” (Res. Ex. 64; Res. Ex. 65 ll. 347-352). However, in his statement given to Sgt. Speelman as part of the Use of Force, Murr only reports saying that he [DeHerrera] needs to go to jail as well, not mentioning that DeHerrera hit him. (Res. Ex. 80). Also, Sparks in his initial General Sessions Summons and Complaint (“GSSC”) report (Res. Ex. 76) did not mention that Murr told him that DeHerrera hit him, only that DeHerrera “was going to jail.” But then in Sparks’ first IAB interview he stated that Murr told him to arrest DeHerrera because he hit him [Murr] (Res. Ex. 61 at ll. 275-277) and in subsequent interviews he repeated that allegation. (Res. Ex. 68, ll. 282-285). Joe Goorman indicated in his statement (Res. Ex. 29, ll. 84-87) that Murr told him to grab DeHerrera because DeHerrera had pushed him or physically touched him earlier in the altercation. Later in the same statement, Goorman said Murr told him “Grab him [DeHerrera]. He’s going to jail as well.” In his testimony at the hearing, Goorman confirmed that Murr told him that DeHerrera hit him. Officer Jaramillo said in his statement that Murr pointed at DeHerrera and said that “he [DeHerrera] assaulted him as well and needed to be arrested.” (Res. Ex. 58, ll. 61-64).

The Panel has already concluded that there was sufficient evidence from third

parties to find that DeHerrera punched or hit Corporal Murr earlier outside of 5 Degrees when DeHerrera was refusing to leave the area. It is undisputed that Murr pointed at DeHerrera as seen in the HALO video. The weight of the evidence also supports that Murr indicated to Sparks that DeHerrera needed to be arrested, and Sparks responded to Murr’s direction and proceeded to arrest DeHerrera. In addition, there is sufficient

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evidence to conclude that Murr made a statement, which Sparks, Jaramillo and Goorman heard, that “DeHerrera needed to be arrested as he [DeHerrera] had hit him [Murr] as well.”

At that point, Sparks got up from his position at Johnson’s ankle and walked

toward DeHerrera who is seen talking on his cell phone. The video does not show Sparks running or approaching DeHerrera quickly, but instead deliberately, thus reinforcing that DeHerrera was not about to flee. DeHerrera continued to talk on his cell phone holding it with his right hand as Sparks approached. Murr turned his attention back to attempting to control Johnson and was not looking at the events between Sparks and DeHerrera. Sparks gave repeated commands to DeHerrera to stop using his phone and that he was under arrest. (Res. Ex. 61). DeHerrera ignored Sparks and instead turned his body away from Office Sparks so that he could keep talking on his cell phone and avoid Officer Sparks. Officer Sparks described this as DeHerrera blading his body to the right and testified that he perceived this motion to be an aggressive motion in preparation to hit him. DeHerrera does raise his left arm slightly, but neither the “blading” nor the lifting motion appears on the HALO video as acts of active aggression. Sparks admitted that DeHerrera did not actually hit him, but Sparks testified that he perceived DeHerrera to be a potential threat preparing to hit him, knowing that DeHerrera had already punched or hit Murr back at 5 Degrees. However, based on the HALO video evidence, it is not plausible that DeHerrera posed a significant threat to Sparks as he approached. While DeHerrera engaged in a physical altercation previously with Murr, at this point there is no evidence that DeHerrera tried to strike Sparks or was acting in a threatening manner to Sparks. Instead, the Panel finds that DeHerrera was engaged in what Expert Greg Meyers called “defensive resistance” clearing ignoring Sparks and turning away from him, but there is no evidence from the video that Sparks was actually preparing to hit Sparks.

Then, Sparks grabbed DeHerrera and threw DeHerrera to the ground in a very

aggressive manner. The specific motion was described in the Expert Report, HALO chronology report and related analysis of the HALO video (Res. Exs. 181,192, and 280). Sparks reached for DeHerrera’s left arm as DeHerrera started to turn away from Sparks at a 45 degree angle. DeHerrera started to turn away and continued on the phone, while Sparks moved to face DeHerrera and Sparks’ left arm grabbed DeHerrera’s right arm which was still holding the cell phone. Sparks simultaneously grabbed at the back of DeHerrera’s neck with his other arm pushing DeHerrera’s head down. DeHerrera was seen bent down as Sparks takes hold of him. The cell phone was seen in DeHerrera’s right hand down at his side as Sparks starts to gain a position in front of DeHerrera. Sparks had both of his arms around the back of the neck pushing DeHerrera down and forward toward Sparks. Sparks turned to his side while holding the back of DeHerrera’s neck and threw DeHerrera off of the sidewalk onto the street pavement. Neither Murr nor Jaramillo were looking at the action and were instead still on the ground with Johnson. Murr was looking towards Johnson’s feet, and Jaramillo had his back to Sparks and DeHerrera.

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DeHerrera hit the ground partially on his side and ended up turned over face up on the ground. DeHerrera had his knees up and pulled his arms in toward his face in a fetal type position as Sparks moved down toward DeHerrera on the ground. Sparks’ left hand reached and grabbed DeHerrera’s face and his right hand reached and grabbed DeHerrera’s knee, and he pressed them both away from him into the ground. DeHerrera was moved to a face down position onto the ground, and Jaramillo turned toward DeHerrera and Sparks as this was happening.

Sparks testified and claimed throughout the investigation that he attempted to

use a department approved arm bar take down method on DeHerrera. The Panel heard evidence of the arm bar approved technique as well as considered the evidence of Expert Greg Meyers about Sparks’ technique. Based on a review of the HALO video and the other supporting evidence, the Panel finds that Officer Sparks did not use or even attempt to use an approved arm bar take down method. Instead, Sparks’ takedown method caused DeHerrera’s head to slam into the ground causing injury to DeHerrera and leaving a pool of blood on the street where he contacted the pavement. The Panel finds that given the level of resistance from DeHerrera as shown by the HALO video, Sparks’ take down technique was excessive and overly forceful.

Officer Sparks also testified that he perceived that DeHerrera continued to

actively and aggressively resist arrest once DeHerrera was on the ground after the takedown. He perceived that DeHerrera brought his arms up in order to hit him again. Instead, that appears to be part of the rolling motion of DeHerrera as he is being taken down. However, the Panel finds that based on the HALO video, DeHerrera was not trying to aggressively resist arrest while on the ground and did not try to hit Sparks.

Sparks reported that as they went to the ground, DeHerrera landed on his left

side facing away from him. Sparks reported going to the ground and that DeHerrera turned towards him, swinging towards Sparks in an aggressive manner to either strike or grab him and to assault Sparks again. Sparks reported that he interpreted the motion of DeHerrera’s body moving toward him from the left as justification for utilizing his SAP tool to repeatedly strike DeHerrera in what he testified to as “the meaty part of his thigh” to bring DeHerrera into control for the arrest. At that point, Sparks noticed that Murr had come over to assist with DeHerrera and was attempting to get DeHerrera’s hands behind his back since Johnson was handcuffed at that point and was no longer taking the attention of Murr and Jaramillo. Sparks continued to hit DeHerrera with the SAP believing that DeHerrera was continuing to resist arrest and not complying with his verbal commands. Sparks hit DeHerrera about 9-10 times with the SAP until he concluded that Officer Jaramillo and Corporal Murr had handcuffed DeHerrera.

However, based on the HALO video, the Panel finds that a SAP was

unnecessary to contain DeHerrera who was now on the ground after hitting his head and was not aggressively or actively resisting Officer Sparks. Nor was it necessary to continue hitting DeHerrera with the SAP 9-10 times to further contain him and causing additional injury to DeHerrera.

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Hasan Aoutabachi testified that DeHerrera was yelling something like “I am not resisting” repeatedly to the Officers. Aoutabachi and Shaver confirmed that DeHerrera was not resisting arrest and was not threatening the Officers during the incident. That testimony is consistent with what the Panel sees in the HALO video.

The HALO video, unfortunately, pulled away from the incident at one point after

Sparks’ take down of DeHerrera, and then after refocused to Sparks using the SAP with his right hand and his left hand is on DeHerrera’s back near or at DeHerrera’s waist. DeHerrera was on his stomach with his right cheek on the pavement motionless. After DeHerrera was cuffed and Sparks has stopped using the SAP, Sparks grabbed DeHerrera and picked him up from the ground by his arms which were cuffed. This appears to the Panel to be an unnecessary and overly forceful method of transporting DeHerrera to the police vehicle. Blood was visible on DeHerrera’s face. He was then walked to a police car and was placed into the car and was later transported to Denver Health Medical Center to treat his injuries.

Medical reports from the hospitals indicate that DeHerrera received treatment for

a head injury, loss of consciousness, multiple abrasions/lacerations to the face and contusions to the face and lower extremity as well as alcohol intoxication. (Res. Exs. 97 and 98).

Soon after the events, Sparks wrote up the GSSC for DeHerrera (Res. Ex. 76).

In that report, Sparks charged DeHerrera with Interference and Resistance, but not assault. Sparks was responsible for the write-up of the GSSC for DeHerrera while Murr was responsible for the GSSC for Shawn Johnson. (Res. Ex. 65, ll.111-148). It was a very chaotic time according to Murr’s IAB statement, and Murr left the charge paperwork for DeHerrera to Sparks. Sparks did not write up an assault charge for DeHerrera, though Murr thought Sparks should have done so, but Murr did not clearly communicate those directions to Sparks in the chaos of the event. (Res. Ex. 65, ll.148-172).

Sparks’ GSSC for DeHerrera stated that he responded to a call out for help from

Murr and when he responded he was advised that Shawn Johnson had punched Murr and that DeHerrera was going to jail. DeHerrera was said to be interfering with Murr’s arrest of Johnson. Sparks reported that DeHerrera was about 1 foot away when they were arresting Johnson and that Sparks advised DeHerrera numerous times to get back and he refused. In the GSSC, Sparks described the arrest of DeHerrera as simply that he attempted to detain DeHerrera when DeHerrera tensed up and made a fist and bladed his body. According to the GSSC, DeHerrera then spun to his left attempting to strike Sparks in the face with a closed right fist. Sparks then took him to the ground where DeHerrera attempted to strike him again. Sparks claimed that he told DeHerrera numerous times to put his hands behind his back and stop resisting until the officers finally brought him into compliance.

The GSSC report conflicted with the HALO analysis as set forth above in many

significant ways. Thus, the Panel finds that Sparks’ GSSC report contains many false and misleading statements. When Sparks was confronted during his IAB interview in

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June 2009, with the HALO video and evidence that conflicted significantly with his account in the GSSC, Sparks attempted to create post hoc rationalizations for the events. He never accepted that the HALO video was completely inconsistent with his GSSC statement and his June and September 2009 IAB interviews. (Res. Ex. 61; ll.58-84; Res. Ex. 68, ll. 120-238). The prosecuting attorney reviewed the HALO video determined that the charges in the GSSC could not be sustained beyond a reasonable doubt against DeHerrera. (Res. Ex. 280, DVR 000097).

On April 4, 2009, soon after the incident, Sgt. Speelman conducted a Use of

Force investigation and prepared a Use of Force Report relating to the incident. (Res. Ex. 80). Sgt. Speelman interviewed DeHerrera and took photos indicating that DeHerrera was visibly intoxicated, had slurred speech, and had a strong odor of alcohol on his breath and poor balance. He indicated that it was very difficult to get a statement from DeHerrera due to his level of intoxication. DeHerrera said he had grabbed the officers but that he did not punch the officers because he was already handcuffed. He recalled being punched by the officers after he was handcuffed. This statement is inconsistent with the HALO video and there is no evidence that DeHerrera was hit after being handcuffed and arrested. Sgt. Speelman contacted Johnson who was uncooperative. Sgt. Speelman’s interview of Murr includes Murr’s claim that Johnson punched him two times in the chest and then ran. Murr did not report that DeHerrera punched or hit him. But he reported that he advised Sparks to arrest DeHerrera and falsely stated that when Sparks approached DeHerrera, DeHerrera attempted to punch Sparks and then Sparks took DeHerrera to the ground.

Sparks was interviewed by IAB in June 2009 and recounted a story similar to the

one in his GSSC. DeHerrera needed to be arrested because he had previously interfered with Murr trying to take Johnson into custody. DeHerrera was 1-2 feet away and was telling the person on the phone to get down there and help him out. DeHerrera resisted arrest, tensed up and bladed his right shoulder away from him, made a fist with his right hand and quickly turned to Sparks attempting to strike him with a closed right fist. Fearing that he was going to be attacked by DeHerrera, he used a departmentally approved arm bar takedown. While on the ground, he claimed that DeHerrera once again tried to punch him. He also said that DeHerrera continued to resist arrest while on the ground and so Sparks needed to use the departmentally approved SAP striking technique in the upper thigh area to attempt to gain compliance until he was handcuffed. Sgt. Speelman recommended that no further review or investigation was needed since the actions taken by the Officers were “minimal, reasonable, appropriate and within Department policy” based on the testimony given to Sgt. Speelman from the Officers. Sgt. Speelman did not have access to the HALO video and thus his conclusions are consistent with the self-reporting of Sparks and Murr.

When Sparks was re-interviewed by Commander Saunier in the December 3,

2010, report, Sparks recounts a similar version of events – continuing to insist that DeHerrera was going to throw a punch when Sparks approached him, that DeHerrera continued to aggressively resist arrest on the ground, that he did an arm bar take down, used the SAP appropriately and in a justified manner because DeHerrera continued to

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resist, and appropriately took DeHerrera to the patrol car because DeHerrera was refusing to get up going limp. (Res. Ex. 117, DVR 000988-90). He denied having contact with Murr about how to fill out the paperwork. He recalled that they briefly spoke about the charges and that Murr said just charge him with Interference and Resistance, as the District Attorney would not accept a Felony Assault charge.

Officer Jaramillo’s statement was taken as part of the Use of Force, and he

claimed that DeHerrera was taken to the ground with what appeared to be an “arm bar take down.” He reported that Sparks told him that DeHerrera tried to punch him in the face, and Jaramillo reported that DeHerrera resisted attempts to arrest him. Jaramillo’s statement supported Sgt. Speelman’s findings that the use of force was consistent with the active aggression of DeHerrera and Johnson as reported by the Officers. Officer Jaramillo gave an IAB interview on June 2, 2009 (Res. Ex. 58) and testified at hearing about the incident. In that statement at Res. Ex. 58, ll. 61-64, Officer Jaramillo indicated that Murr pointed at DeHerrera and said that DeHerrera had assaulted Murr as well and needed to be arrested. Then at Res. Ex. 58, ll. 159-165, Jaramillo said he assumed that DeHerrera had assaulted Murr; at Res. Ex. 58, ll. 177-180, he said Murr said DeHerrera needed to be arrested and then at Res. Ex.58, ll. 183-185, he said that Murr said “he [DeHerrera] hit me too.” Officer Jaramillo was investigated for his role in the incident but was not ultimately disciplined for any of his statements. (Pet. Ex. J, DVR 000955).

In Murr’s first IAB interview (Res. Ex. 65, ll. 347-352; ll. 421-436), Murr also

provided a statement that indicated that he actually saw DeHerrera try to hit Sparks and that Murr had pointed at DeHerrera and told Sparks that DeHerrera needed to go to jail because DeHerrera had punched Murr. “And I saw Sparks grab him and I saw one of his arms come up to try to hit Sparks and Sparks grabbed him and put him down on – dumped him down on the ground face first –. ” After being confronted by the HALO video in the IAB interview, Murr changed his statement: “I don’t know. I know I can – I can tell you what I remember, Sarge, that I thought I saw him try to hit Sparks and I saw Sparks dump him –.” (Res. Ex. 65, ll. 1059-1070). He admitted that his back was to Sparks and DeHerrera and therefore he could not have seen whether DeHerrera took a swing at Sparks. (Res. Ex. 65, ll. 1164-1172). Then Murr was asked to explain why he put that he saw DeHerrera try to hit Sparks in his statement but now could not rectify that with the HALO video. “Yeah, ma’am, I don’t want to – I don’t want to say I saw him and now in this report, I didn’t because now I’m setting myself up – you know what I mean?” … And that’s what I remember and I thought I remember at this time and that’s why I put it down here. Now that I see this and I can reflect on this, I can tell you exactly what I saw. But this was from my memory a couple of months ago. And that’s why I don’t want to set myself up to fall down because in here I said I saw him do that and that’s what I thought I remembered seeing.” (Res. Ex. 65, ll. 1180-1193). Murr attempted to explain the discrepancy as the statement; the statement was completed from memory versus the situation where one actually views a video showing something differently. (Res. Ex. 65, ll. 1328-1332). “I’m not a machine – I’m a human being and I can only go with my memory and I’ve nothing to hide. And I know there’s a camera there --…. And I’ve known there’s been cameras there forever and I could care less if

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somebody else is videotaping me, you know, because I – I’, going to – if I did something , I did something, and I said in my statement that I did strike him in the face [Johnson] And that’s one thing about me, Sarge, I’ll tell you, if I do something, I’ll – I’m going to tell you, you know so. (Res. Ex. 65, ll. 1333-1342).

In his September statement, Murr admitted that, he just assumed that DeHerrera

took a swing at Sparks, but he did not actually see that happen. That assumption was based on the fact that he saw Sparks take him to the ground and take him into custody. He also stated that after the incident he remembered Sparks telling him that DeHerrera tried to hit him. (Res. Ex. 70, ll. 232-267). That is why he put that in his statement. (Res. Ex. 70, ll. 278-281). Officer Jaramillo also indicated in his IAB statement that Sparks said that DeHerrera tried to hit him, though he did not actually see that either. (Res. Ex. 58, ll. 211-219). In the report of Commander Saunier’s re-interview of Murr, Murr states that he did not see DeHerrera hit or attempt to hit Sparks – he thought he had seen that but looking at the video he realized that that his perception was wrong. (Res. Ex. 117, DVR 000985). He based his faulty perception on the chaos of the incident – fast breathing, tunnel vision, nervous, adrenaline dump, cold sweat, chasing down Johnson, having been hit by Johnson and DeHerrera and then having DeHerrera return to the scene. (Res. Ex. 117, DVR 000986). At that interview as recounted by Commander Saunier, Murr based the difference in his statement and the HALO video as a failed perception based on seeing movement and making assumptions about that movement, not that Sparks or anyone else had told him that DeHerrera tried to hit him. (Res. Ex. 117, DVR 000986-987). He denied lying on the paperwork to justify DeHerrera’s arrest. He denied coordinating with Sparks to ensure that all the facts were documented on both arrests. He thought that Sparks handled DeHerrera and he handled Johnson.

Murr’s testimony at the hearing was consistent with his later statements and

interviews – that he did not actually see DeHerrera try to hit Sparks, but because Sparks dumped him on the ground he made that assumption and that Sparks had told him that DeHerrera tried to hit him. He continued to deny coordinating his story with Sparks to make sure they had the same facts.

Sections of the Independent Monitor’s memorandum expressing his concerns

about the discipline were entered into evidence. The Monitor concluded that both Murr and Sparks lied on their reporting. He asserted that Murr decided to help out Sparks by corroborating Sparks’ version of the incident to ensure that Sparks would not be disciplined for his use of inappropriate force. He provided no evidence of collusion between the Officers, or a pattern of false reporting by Murr, just his opinion that Murr wanted to help out Sparks. (Res. Ex. 121).

After the case was reopened for additional investigation, Manager of Safety

Garcia was tasked with reviewing the Chief of Police’s recommendation regarding discipline and issued his March 25, 2011, Departmental Order of Disciplinary Action. (Res. Exs. 261 and 266). Manager of Safety Garcia determined that Sparks should receive thirty days for a violation of RR-306, Inappropriate Use of Force and termination

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for a violation RR-112.2, Commission of a Deceptive Act. Manager of Safety Garcia determined that Murr should be discharged for a violation of RR-112.2, Commission of a Deceptive Act.

As to Sparks, Garcia testified at the hearing that his RR-306 discipline was based

on Spark’s inappropriate apprehension of DeHerrera, the initial take down, the excessive use of force connected to the use of the SAP on DeHerrera, and the inappropriate picking up and lifting of DeHerrera after DeHerrera was handcuffed. From the HALO video, Garcia saw that Sparks slammed DeHerrera to the ground which was not a proper takedown technique and that he agreed with others in the chain of command that the take down was well in excess of what the situation required both in the amount force and the method employed. As to the SAP, the number of times the SAP was used was excessive and that weapon, though legal at the time within the DPD, can cause severe damage to an individual. The SAP is only allowed when the suspect is actively resisting arrest according to the Manager of Safety’s review of the Use of Force Policy (Res. Ex. 306). Manager of Safety Garcia did not see that DeHerrera posed a threat to Sparks when Sparks arrived and that thus, Sparks had no reasonable concern for his safety to justify the use of force. Garcia determined that DeHerrera was engaged in passive resistance, not aggressive – he was turned away, not swinging or actively resisting arrest. Sparks had no evidence that DeHerrera was engaged in a serious crime when Sparks contacted him. Then when DeHerrera was on the ground there was no immediacy of threat since DeHerrera was face down and under control and was saying “Please stop, I am not resisting.” Garcia thought that DeHerrera was “turtling” his body and was not attempting to evade arrest by fleeing. As to the pick-up after DeHerrera was arrested, Manager of Safety Garcia consulted with Chief Quinones and Commander Lopez and was told that Sparks was not following DPD procedures and that the pick-up was forceful while a suspect is in handcuffs. Manager of Safety Garcia explained that under the Matrix, the presumptive penalty for an inappropriate use of force violation was thirty days for a Category E violation. (Res. Ex. 278).

As to Sparks and the Commission of a Deceptive Act under RR-112.2, Manager

of Safety Garcia based his decision on (1) his conclusion that Sparks, Murr and Jaramillo had talked to each other about their statement shortly after the arrest and made their statements based on those discussions; and (2) his review of the HALO video that is wholly inconsistent with Sparks’ version of the events with multiple examples in terms of attempts to hit, blading, aggressive avoiding of arrest, punching while on the ground, continued aggressive resistance on the ground and then continued active resistance after being cuffed. Manager of Safety Garcia testified that under the Matrix, the presumptive penalty for a Category F violation was termination. (Res. Ex. 278).

As to Murr and the Commission of a Deceptive Act under RR-112.2, Manager of

Safety Garcia reviewed the statements of Murr to reach his discipline (1) Murr put in his statement that he saw DeHerrera swing at and hit Sparks, but Murr could not have seen DeHerrera swing at Sparks; (2) Murr saw the HALO video and then realizing that his

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head was turned away instead said that the reason Murr included a sentence about DeHerrera swinging at and hitting Sparks was because Sparks told him that; and (3) then one year later, when Murr was re-interviewed Murr said he never saw DeHerrera try to hit Sparks, and he did not base his statement on something he heard from Sparks, since Sparks does not say that he told Murr that; instead, Murr was basing his statement on the “totality of the circumstances” in light of Murr’s perceptions. Manager of Safety Garcia determined that the first two statements were misleading but that the final statement “based on the totality of the circumstances” was made because Murr was trying to cover for another officer to prevent Sparks from having any liability for the use of force. According to Manager of Safety Garcia’s analysis, Murr knew he had a problem when he saw the pool of blood on the ground and knew that if DeHerrera had swung at Sparks that would justify Sparks’ action in any Use of Force Report. Garcia determined that once Murr’s story and Sparks’ story did not line up as to purportedly telling Murr that DeHerrera tried to hit him, Murr was stuck because now his second story made Sparks look like a liar so Murr moved to the “perception” excuse to protect Sparks from the excessive force tag. Garcia also thought that Murr lied about DeHerrera punching him but that only played a small part in Garcia’s determination that Murr violated RR-112.2. For a violation of RR-112.2, Manager of Safety Garcia testified that the Matrix provides a presumptive penalty of termination for a Category F violation. (Res. Ex. 278).

LEGAL ANALYSIS AND CONCLUSIONS

Officer Devon Sparks RR-306 Use of Inappropriate Force

Officer Sparks was disciplined for thirty days for a violation of RR-306, Inappropriate Use of Force with regard to his arrest of DeHerrera. The factual allegations of inappropriate use of force were detailed in the City’s Expert Report as well as in the testimony of Manager of Safety Garcia. Those include: Garcia testified at the hearing that his RR-306 discipline was based on Spark’s inappropriate apprehension of DeHerrera, the initial take down, the excessive use of force connected to the use of the SAP on DeHerrera, and the inappropriate picking up and lifting of DeHerrera after DeHerrera was handcuffed. From the HALO video, Garcia saw that Sparks slammed DeHerrera to the ground which was not a proper takedown technique and that he agreed with others in the chain of command that the take down was well in excess of what the situation required both in the amount force and the method employed. As to the SAP, the number of times the SAP was used was excessive and that weapon, though legal at the time within the DPD, can cause severe damage to an individual. The SAP is only allowed when the suspect is actively resisting arrest based on the Manager of Safety’s review of the Use of Force Policy. (Res. Ex. 306).

Manager of Safety Garcia did not see that DeHerrera posed a threat to Sparks

when Sparks arrived and that thus, Sparks had no reasonable concern for his safety to justify the use of force. Garcia determined that DeHerrera was engaged in passive

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resistance, not aggressive – he was turned away, not swinging or actively resisting arrest. Sparks had no evidence that DeHerrera was engaged in a serious crime when Sparks contacted him. Then when DeHerrera was on the ground there was no immediacy of threat since DeHerrera was face down and under control and was saying according to Aoutabachi, “Please stop, I am not resisting.” Garcia thought that DeHerrera was “turtling” his body and was not attempting to evade arrest by fleeing. As to the pick-up after DeHerrera was arrested, Manager of Safety Garcia consulted with Chief Quinones and Commander Lopez and was told that Sparks was not following DPD procedures and that the pick-up was forceful while a suspect is in handcuffs.

The Panel agrees with the determination of Manager of Safety Garcia as to

Officer Sparks’ inappropriate use of force with the arrest of DeHerrera. The HALO video evidence provides overwhelming and conclusive evidence of DeHerrera’s actions and Officer Sparks’ reactions to DeHerrera. Use of Force may be justified in certain circumstances by DPD officers at times based on the DPD’s Use of Force Policy as contained at Section 105 of the DPD Operations Manual. (Res. Ex. 279). However, as analyzed below, Officer Sparks did not have a reasonable basis to apply the level of force he used on DeHerrera during the arrest as supported by the HALO video evidence and the analysis of the HALO video and other third party witnesses including Aoutabachi and Shaver.

The DPD’s Use of Force Policy is set forth at Section 105 of the DPD Operations

Manual (Res. Ex. 279). The Policy states: The level of force applied must reflect the totality of circumstances surrounding the immediate situation. The officer need only select a level of force that is within the range of “objectively reasonable” options. Officers must rely on training, experience and assessment of the situation to decide an appropriate level of force to be applied. Reasonable and sound judgment will dictate the force option to be employed. The Use of Force Policy references C.R.S. § 18-1-707 with regard to the

use of physical force making an arrest or in preventing an escape. This section provides:

(1) Except as provided in subsection (2) of this section, a peace officer is

justified in using reasonable and appropriate force upon another person when and to the extent that he reasonably believes it necessary: a. To effect an arrest or to prevent the escape from custody of an

arrested person unless he knows that the arrest is unauthorized; or b. To defend himself or a third person from what he reasonably

believes to be the use or imminent use of physical force while effecting or attempting to effect such an arrest or while preventing or attempting to prevent such an escape.

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The Use of Force Policy also incorporates the pertinent case law on the

topic including Boykin v. People, 22 CO 496, 45 P. 419 (1896) which provides that Colorado law does not require an officer to retreat from an attack rather than resorting to physical force. A peace officer is expected to take appropriate action to handle a situation and is authorized to use the reasonable and appropriate force necessary to overcome resistance. The degree of force required may be different in different situations. Also, Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed 2d 443 (1989), which provides law enforcement officers are permitted to use force to effect an arrest only to the extent that it is “objectively reasonable” under the circumstances.

The Use of Force Policy sets forth a series of factors to assist with

determining whether the force is objectively reasonable under the totality of the circumstances, as opposed to subjectively reasonable to the individual officer. The factors are:

a. Imminent threat of injury to an officer(s) and/or others. The greater the level of the threat is, the greater the level of force that may be used. b. If the person is actively resisting seizure, the officer may escalate the justified (reasonable) level of force. c. Circumstances are tense, uncertain, and rapidly evolving. Some incidents take hours to resolve, while others are over in seconds. The tenser, uncertain and rapidly evolving the incident is, the higher the level of force that may be reasonable. d. The more severe the crime, the more force that may be justified. e. Attempting to evade seizure by flight may justify escalating the level of force.

In applying these factors to the Sparks’ arrest of DeHerrera, initially, Sparks had some legitimate concern about DeHerrera since he had information that DeHerrera had hit Corporal Murr and needed to be arrested. However, when Sparks turned to approach DeHerrera, he said his initial reaction was to deescalate the situation by putting away his OPN. Sparks is seen walking deliberately toward DeHerrera, not exhibiting any signs of fear for his safety or need to move quickly due to risk of flight by DeHerrera. That reaction is initially consistent with the physical signs and cues that DeHerrera is exhibiting – DeHerrera is not being aggressive – he is off to the side talking on his cell phone as it turns out to his dad. Sparks seems to be reacting in a reasonable manner at that point consistent with the level of resistance exhibited by DeHerrera’s defensive or passive resistance. Sparks is warning DeHerrera and telling him to cooperate with the arrest. But DeHerrera did not cooperate and turned his body away from Sparks while continuing to talk on the cell phone. However, there was no evidence based on the HALO video that DeHerrera was blading his body getting ready to hit Sparks. Sparks could have tried alternative methods of arresting DeHerrera under those circumstances to respond to the level of passive

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resistance to arrest that DeHerrera was exhibiting as testified to by the City’s Expert, Greg Meyers, but instead appeared to unreasonably overreact to DeHerrera’s passive resistance in an aggressive use of force. The aggressive take down seemed to come out of nowhere. Moreover, it was not credible that Sparks was attempting to use an appropriate arm bar take down based on the evidence that the Panel heard as to the appropriate arm bar technique.

Thus, there does not appear to be an imminent threat of injury to Officer Sparks exhibited by DeHerrera. Sparks was warranted to be cautious because DeHerrera had shown himself to be willing to physically engage Corporal Murr and had refused to leave the scene, but approaching DeHerrera, there did not appear to be an imminent threat of injury even taking into account DeHerrera’s previous action outside of 5 Degrees. While DeHerrera was resisting arrest, it was not in an aggressive manner and was more akin to passive or defensive resistance. Circumstances were tense in light of the arrest of Shawn Johnson occurring nearby, but they were not rapidly evolving with regard to DeHerrera – DeHerrera is agitated and upset but is not aggressive nor does he appear to be making any moves that suggest he is going to hit Sparks or try to flee the scene to avoid arrest. In terms of severe crime occurring, none appears to be occurring when Sparks approached. As said, Sparks knew that DeHerrera struck at Murr, but DeHerrera was not exhibiting that type of potentially assaultive, combative behavior when Sparks approached DeHerrera. Sparks failed to modify his use of force in a reasonable manner based on the actions of DeHerrera at the scene.

Once Sparks took DeHerrera down, there was even less evidence of any potential threat to Sparks or other officers. DeHerrera hit his head and was disoriented. He was no longer combative in any manner. He did not even appear to be defensively resisting anymore, and DeHerrera was trying to tell Sparks to stop that he was not resisting arrest. Sparks appeared to ignore those cues and just continued with escalating the force with the use of the SAP to subdue DeHerrera, but DeHerrera was already physically subdued from having hit the pavement head first. The SAP was not necessary in light of the factors set forth above as the threat of imminent danger was reduced not increased after DeHerrera was taken down to the ground. Also, once DeHerrera was on the ground, there were two additional officers helping with the arrest so Sparks was not on his own trying to handle a “one on one” altercation with no back-up. Sparks claimed to have heard the fellow officers say to DeHerrera “stop resisting, stop resisting,” but there is not sufficient evidence from Murr and Jaramillo to support those statements. Sparks again appeared to have overreacted to DeHerrera’s body movement and continued using the SAP without provocation or need. Finally, Sparks lifted DeHerrera by his arms after DeHerrera was handcuffed claiming that he was intentionally trying to avoid going into the car by going limp. Instead, it appears that DeHerrera was making no effort to resist and any potential threat to Sparks was relatively minimal.

In conclusion, applying the case law and factors from the DPD Use of Force Policy, Officer Sparks’ use of force was not objectively reasonable when arresting DeHerrera in light of the totality of the circumstances. Sparks’ actions were inconsistent

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with DPD policy and training and were an unnecessary escalation of force in light of the cues and actions of DeHerrera. The Panel finds that the City met its burden of proof as to this violation. Therefore, the Panel concludes that Officer Sparks violated RR-306, Inappropriate Use of Force. Under the Matrix, the presumptive penalty for an inappropriate use of force violation was thirty days for a Category E violation. (Res. Ex. 278). The Panel agrees with the Manager of Safety that the presumptive penalty of thirty days is appropriate for this violation. Officer Devon Sparks and Corporal Randy Murr RR-112.2 Commission of a Deceptive Act

Both Officer Sparks and Corporal Murr were discharged based on violations of RR-112.2. R-112.2 states in relevant part, that “…officers shall not willfully, intentionally, or knowingly commit a materially deceptive act.” The Disciplinary Handbook as contained in Appendix D sets forth guidance as to untruthfulness. It creates two levels of untruthfulness – RR-112.1 dealing with misleading or inaccurate statements that are made without premeditation or any intent to influence the outcome of an official investigation, and the more serious offense of RR-112.2 dealing with commission of an intentionally deceptive act that carries with it the presumptive penalty of termination. There is no dispute that the alleged violations of RR-112.2 for both Sparks and Murr, if true, were material to the official investigation into the arrest of DeHerrera and Sparks’ use of force. Therefore, the Panel’s main focus is on the mental culpability element that RR-112.2 describes to determine whether the Officers intentionally made false statements to affect the outcome of the use of force investigation relating to the arrest of DeHerrera.

The Commission recently provided guidance as to the appropriate mens rea element of RR-112.2. In Malatesta v. Torrez and Palomares, Case Nos. 11 CSC 01A & 02A (October 11, 2012), the Commission found that the hearing officers had inappropriately applied the criminal standard of intent under C.R.S. §18-1-501 to the officers’ false statements as part of their analysis of what established a willful, intentional or knowing deceptive act under RR-112.2.

The Commission interpreted RR-112.2 as requiring a lower standard than that

set forth at C.R.S. §18-1-501 as applied by the hearing officers in Torrez and Palomares. The Commission stated in Torrez and Palomares at 6:

Knowing or intentional conduct requires the Department to show only that the false statement was made with the knowledge that it was false. In other words, the deceptive act must not be innocent or inadvertent.

Similarly, the Commission discussed the standard in Garcia v. Devine and Nixon,

Case Nos. 11 CSC 05A & 06A (October 11, 2012), as to the application of RR-112.2:

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[The application of RR-112.2] requires an inquiry into the Officers’ state of mind – did they fail to report, or did they misreport, with the intent to deceive. Previously, we have defined the mens rea element of RR-112.2 as requiring the City to establish that the false statement was made with the knowledge that the statement was false. Put another way, any misstatement or omission must not be innocent or inadvertent.

Thus, the Panel must make an inquiry into the state of mind of the Officers to

determine whether the Officers made false statements with knowledge that the false statements were false with intent to influence the outcome of the official investigation into Officer Sparks’ use of force in arresting Michael DeHerrera.

There are eight places where the City alleges that Officer Sparks made false

statements that justify Sparks’ termination for RR-112.2: (1) Sparks changes his story and falsely claims that Murr pointed at DeHerrera and said DeHerrera assaulted Murr; (2) prior to the takedown Sparks claims that DeHerrera tried to hit him with a closed fist; (3) DeHerrera spun to the left before Sparks took him down; (4) Sparks falsely said that DeHerrera attempted to strike Sparks; (5) that prior to and after the take down DeHerrera was resisting arrest with active aggression; (6) that Sparks tried to use an approved arm bar take down technique; (7) that DeHerrera tried to strike at Sparks after landing on the pavement; and (8) that DeHerrera actively resisted Sparks trying to handcuff him. The Panel finds that based on the evidence, Officer Sparks knowingly and intentionally made false statements to affect the outcome of the investigation into his use of force against Michael DeHerrera.

As to allegation number 1 in the GSSC (Res. Ex. 76) written right after the

incident, Sparks does not mention that DeHerrera had punched Murr or that Murr told him that DeHerrera had previously punched Murr. The City claims that if it were true that Murr had said DeHerrera had assaulted him, Sparks would have charged DeHerrera with assault instead of just charging him with interference. In the Use of Force Report dated April 4, 2009, (Res. Ex. 80), Sparks says that Murr told him that DeHerrera interfered with Murr trying to take Johnson into custody but does not mention that Murr told him that DeHerrera punched him. However, in Sparks’ first undated IAB interview statement contained in Res. Ex. 61 at ll. 275-277, Sparks says that Murr said “‘Arrest him too. He assaulted me,’ something similar to that.” Then in Res. Ex. 68, the September 9, 2009 interview, Sparks states at ll. 282-285 that Murr’s exact words were “ ‘Him too, he hit me,’ to the best of my – ” The City claims that Sparks changed his story to provide a justification for his use of force.

The Panel does not find that this allegation supports the RR-112.2 discipline. If

Sparks were intentionally trying to justify his use of force and his arrest of DeHerrera with this allegation, more likely than not Sparks would have lied from the very beginning in his reporting on April 4, 2009, in the GSSC and in the Use of Force Report interview, but he did not say that. It appears to have been an inadvertent omission. By his first interview, Sparks indicated that Murr said that DeHerrera hit him. Also, the Panel has found sufficient evidence that Murr did in fact say something to Sparks about DeHerrera

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hitting him or punching him when he pointed to DeHerrera based on neutral third party witnesses taken on April 4, 2009. This is not something that may be easily verified since there was no audio with the HALO video, but this inconsistency was inconclusive for purposes of a violation of RR-112.2.

The remaining seven allegations of untruthfulness arise out of the viewing of the

HALO video and support a finding of a violation of RR-112.2. Upon reviewing the HALO video, it is readily apparent to the Panel that Officer Sparks’ statements about his use of force were inaccurate and false and substantially different than the events as seen in the HALO video. Without the HALO video, it would have been much more difficult to determine whether Officer Sparks was telling the truth or not. Officer Sparks contended at the hearing that his statements and recollections are not really that different from what is seen from the HALO video – but that is not the case. Instead of accepting what the video clearly shows, Officer Sparks tried repeatedly to justify his differing story by saying he reported his perceptions that were tainted by an extreme adrenaline dump due to the intensity of the situation. If these were truly his perceptions – more accurately his severe “misperceptions” of the situation, then he was showing an extreme lack of judgment as to the nature of the events as reflected by the HALO video due possibly to limited time on the police force. At a minimum, his continued denial of the nature of the events as reflected in the HALO video severely hurt his credibility to the Panel.

Officer Sparks’ version of the arrest as contained in his GSSC, his Use of Force

Interview and IAB interviews contained several material differences from the events as recorded by the HALO video: that Michael DeHerrera was 1-2 feet away instead of 5-6 feet away, that Michael DeHerrera was actively resisting arrest, that DeHerrera turned and bladed his body to position himself to hit Officer Sparks with a fist as opposed to DeHerrera simply turning away to continue talking to his dad on the phone, that DeHerrera proceeded to try to hit Officer Sparks when Officer Sparks approached him to arrest him, that Officer Sparks attempted to use in good faith an arm bar take down to arrest DeHerrera as opposed to grabbing DeHerrera and slamming him onto the ground despite a lack of physical resistance, that DeHerrera continued to resist arrest while on the ground instead of rolling away in self defense, that DeHerrera brought his arms up to hit or punch Officer Sparks instead of just moving in the roll away from Officer Sparks, that DeHerrera continued to resist arrest after DeHerrera was on the ground justifying the extensive use of the sap, and that DeHerrera continued to resist when taking him to the police car justifying dragging him to the car.

The Panel finds that DeHerrera, though most likely intoxicated and aggravated at

seeing his friend being arrested, was not engaged in active aggression to avoid arrest, but was engaged in defensive resistance to the arrest. DeHerrera did not comply with police directives and continued to talk on his cell phone and moved his hands in an animated fashion. The Panel finds that the City’s expert witness was more credible in describing the use of force as not objectively reasonable as seen in the HALO video. There were other less aggressive means available to arrest DeHerrera which Sparks did not employ. The series of false statements at clear odds with the HALO video and

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the other evidence of record are misleading. Given the extent of the differences, and the lack of any reasonable explanation for the differences, the Panel concludes that Sparks made the false statements knowing that they were false to try to avoid being disciplined for inappropriate use of force.

Unlike Murr, Sparks arrived to the scene without having experienced the chaotic

events at 5 Degrees including altercations and assault by Johnson and DeHerrera, a chase across the street and the continued hostility and belligerence of Johnson and DeHerrera to Murr before Sparks arrived on the scene. Sparks appears to approach and walk towards DeHerrera in a calm straightforward manner, not in the manner of someone experiencing an extreme adrenaline dump.

In addition, Sparks was directly involved with DeHerrera and claims to have had

tunnel vision as to DeHerrera’s actions. Thus, he should have been able to recall accurately whether or not DeHerrera tried to hit him twice when he wrote up the GSSC and the Use of Force interview. Once he was confronted with the HALO video evidence, Sparks continued to insist that he did nothing wrong in terms of use of force and that he accurately reported the events except for a minor detail of DeHerrera being 1-2 feet away instead of being 5-6 feet away. Given his lack of credibility, his inaccurate and false reporting are more than just a violation of RR-112.1 but constitute a calculated attempt to cover up the inappropriate use of force against DeHerrera during the arrest consistent with a violation of RR-112.2.

In Malatesta v. Torrez and Palomares, supra, at 6, the Commission found it

compelling that for purposes of RR-112.2 that there exists a high volume of false statements, highly significant/material false statements, and statements made by Officers themselves engaged in the pursuit with direct knowledge of all material facts as opposed to mere bystanders who lacked adequate perception of the events at issue. Those factors are relevant to the analysis of Sparks’ false statements. Sparks made a series of false statements; the false statements were highly significant and materially affected the Use of Force Report determination issued by Sgt. Speelman; Sparks was directly involved in the take down and arrest of DeHerrera, initiating the action himself, and controlling the actions he used against DeHerrera; Sparks was not a bystander witness who lacked adequate perception of the events – he was directly involved and was directly responsible for the injuries that DeHerrera suffered. Thus, under the Torrez and Palomares analysis, the City established that Sparks violated RR-112.2 and engaged in the commission of a deceptive act attempting to affect the outcome of the Use of Force investigation into his handling of DeHerrera’s arrest. Having found a violation of RR-112.2, the Panel sustains the presumptive penalty of termination for Officer Sparks.

Conversely, Murr was not charged with use of force or commission of a

deceptive act with regard to Murr’s arrest of Johnson. Murr was directly involved and responsible for the handling of Johnson’s arrest including the reporting of the Use of Force in conjunction with Johnson. Murr was found to have used appropriate force in the arrest of Johnson though Murr admittedly hit Johnson during the course of the

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arrest. Murr then appropriately reported all of the incidents related to the take down and arrest of Johnson and was not charged with any violation of RR-112.2 with regard to that event. Given Murr’s honesty about his use of force with regard to Johnson, the Panel concludes that Murr is more credible than Sparks in terms of reporting use of force events.

Murr was not directly involved in the take down of DeHerrera and was seen on

the HALO video to be involved instead in the arrest of Johnson at the time Sparks was engaged with DeHerrera, at least until later when Murr helped handcuff DeHerrera. But when Murr arrived to assist with the handcuffing, DeHerrera has already been thrown to the ground. It is undisputed that Murr made a false statement in his initial report and interview claiming that DeHerrera attempted to hit Sparks. For purposes of the discipline, Manager of Garcia focused on that false statement and the subsequent changes in Murr’s statement about whether he saw DeHerrera try to hit Sparks. Since that statement was false and material, it could have served as evidence to sustain a violation of RR-112.1 for a false and misleading statement. However, the City charged Murr with a violation of RR-112.2 which requires a showing that Murr knew that he was making a material false statement for the purposes of affecting the outcome of the Use of Force investigation. With regard to whether Murr saw DeHerrera attempt to hit Sparks, Murr was actually not directly involved and testified that he lacked sufficient perception of the events. Using the Torrez and Palomares analysis, Murr was not directly engaged in the pursuit of DeHerrera and did not have direct knowledge of all of the facts as to DeHerrera and Sparks. He is more properly seen as a bystander witness for purposes of this analysis and is more similar to Officer Jaramillo who was not disciplined by the City for an RR-112.2 violation. In addition, his false statement was a singular false statement that he retracted once he saw the HALO video and based it on an improper misperception of the events. Again, that may have been adequate grounds for a violation of RR-112.1, but that is not before the Panel.

Finally, there is insufficient evidence to establish a conspiracy on the part of

Sparks and Murr for the purposes of colluding to ensure their statements matched. Had there been sufficient evidence of collusion, it would have been reasonable for the Panel to conclude that Murr acted to protect Sparks. At best, there is an inference that Sparks and Murr colluded to ensure their stories matched because Murr knew that they had to write-up a use of force since there was blood on the ground. There is evidence that Sparks, Murr and Jaramillo spoke shortly after the arrest, but it was not a lengthy conversation and all three officers denied discussing how they could match their stories. No additional witnesses were presented who had knowledge of such collusion. Sparks and Murr did not write their respective statements at the same time and place or jointly. No additional evidence was presented such as repeated discussions between Sparks and Murr, or repeated cell phone conversations or meetings after the fact in which the parties could have formed a conspiracy to lie. Thus, given the inadequate evidence, the Panel concluded that it is more reasonable to conclude that Murr mistakenly made an erroneous assumption based on seeing Sparks dump DeHerrera that Sparks was reacting to a physical provocation such as a potential strike.

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The other purported false statement made by Murr was the claim that Murr told Sparks that DeHerrera hit Murr outside of 5 Degrees before Officer Sparks arrived. The Panel is convinced based on the third party witnesses, that more likely than not Murr was hit or punched by DeHerrera before Officer Sparks arrived and that when pointing at DeHerrera, again based on the third party witnesses, it is more likely than not that Murr told Sparks about DeHerrera hitting him. Thus, there is insufficient evidence to support a finding of a violation of RR-112.2 by Murr based on that statement.

Therefore, the Panel finds insufficient evidence to sustain a violation of RR-112.2

against Corporal Murr based on the false statements of record and does not sustain the termination of Corporal Murr under RR-112.2.

Hearing Officer Leff’s Dissent on the Procedural Issue and Concurrence in the Decision on the Merits

I respectfully dissent from the Majority Opinion (“Opinion”) regarding the “Procedural Issue,” but concur and join with the Majority in reaching a decision on the merits of the case.

The Civil Service Commission (“Commission”) reversed this Panel’s Order granting summary judgment in favor of the Petitioners. Decision and Final Order (“Final Order”). The basis for the Panel’s decision was that once the 10 day period to appeal lapsed, the Manager lost authority to rescind. The Commission ruled that there was an implied authority in the Denver Charter and Rules which allowed the Manager a reasonable period of time to modify or rescind his Order.

The Commission entered a very narrow ruling. The ruling does not “grant unlimited authority to rescind or modify a disciplinary order no matter how flimsy the basis for modification.” Final Order p. 10 [emphasis added]. The Commission only resolved the issue of whether the Manager has the right to rescind or modify once the ten day appeal deadline has passed. And under the circumstances the Commission ruled the Manager of Safety was not divested of jurisdiction.

This is where I part company from the Majority Opinion. The Majority finds that the use of the word “flimsy” in the Final Order is the standard of review as to whether the “newly discovered” evidence is sufficient to reopen or modify a decision. I disagree.

I believe that the use of “flimsy” is pure hyperbole. It is not the Commission’s ruling, but only an exaggeration to show that the Commission is not granting unlimited authority to the Manager. To support this interpretation, one only has to go back to the Final Decision. On page 8 of the Final Decision, the Commission, in defending the right to reopen a matter, states that it would be unreasonable to disallow such authority when new and material evidence comes “to light after the ten day appeal has passed, which justifies a change in the disciplinary order; either to the benefit or the detriment of the disciplined employee.” Final Order p. 8.

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To further support the contention that the standard should be whether the evidence needs to be “new and material” and not “flimsy”, the Commission stated: “It is true that one of the bases on which the Commission may review a disciplinary order is that new and material evidence is available.” Final Order p. 9 The Commission is limited to a review of a “…Hearing Officer decision based on the evidence presented to the Hearing Officer except when the appeal is based on new and material evidence.”

Additionally, there is no standard anywhere in the law, civil, criminal or administrative which supports the position that a matter could be sustained, modified or rescinded on a “flimsy” basis.

I therefore find that the authority of the Hearing Officer to modify or rescind must be based on “new” evidence – not discoverable during the initial investigation – and “material” evidence – material meaning substantial evidence, which aids in or changes a decision. The above while discussed in consideration of the authority of the Commission is applicable to the authority of the Manager of Safety.

When there is no showing that the “new” evidence was unknown during the initial investigation and that if known would add weight to the decision making process the Manager erred in rescinding his original orders of July 19, 2010.

I adopt the findings of facts stated in the Majority Opinion. Those facts are undisputed by the parties. The pertinent facts for this discussion follow. There was an incident in a LoDo bar on April 4, 2009, in the early morning hours that moved out into the streets and which resulted in allegations of excessive force and other issues involving the two Petitioners, and complaints against various other officers and citizens. When the scuffle moved outside onto the streets, at 15th and Larimer, it was recorded by a High Activity Location Observation (“HALO”) camera. The video captured the events after the confrontations moved from inside the night club to the time Michael DeHerrera and Shawn Johnson, the combatants, were eventually subdued and handcuffed and placed in the squad cars.

As a note, during the incident, Sgt. Gilmour, one of the officers on the scene, did chase off a witness who was “interfering” with the arrests of the parties. He did contact other civilians who were there, interviewed them and took contact information down. He did not interview or get contact information from the witness he chased off. It is not known whether he noticed the two witnesses who came forth after viewing the HALO VIDEO (“VIDEO”) on television. As commander it was his responsibility to secure the scene and interview all the witnesses. His conduct in not securing the scene and interviewing as many witnesses who were there resulted in a disciplinary matter being filed against him.

Since the incident involved physical contact by the officers an Internal Affairs Bureau (“IAB”) investigation was ordered. The IAB conducted the investigation.

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The IAB completed its investigation and, per procedure, the file containing the complete investigations, including written reports, audio and video interviews of the witnesses or persons identified at the time of the incident; the VIDEO; as well as photos, videos, written records, police reports, criminal charges, etc., went up the chain of Police Command for review and recommendations regarding violations. The Police Chief made his final recommendations of violations and penalties to Manager Perea. [Ron Perea was hired as the Manager of Safety on June 1, 2010, and started the position July 1, 2010.] Manager Perea made a full review of the IAB file sent up to him by Chief Whitman and adopted the recommendations of the Police Chief.

The July 19, 2010, Departmental Order of Discipline for Corporal Murr imposed a three (3) day suspension without pay beginning on September 5, 2010. [Pet. Ex. B].

The July 19, 2010, Departmental Order of Discipline for Officer Sparks fined him a loss of twenty-four (24) hours assessed as eight hours in each in periods, 10, 11 &12, 2010. [Pet. Ex A].

Once Manager Perea issued his decision, Channel 9 made a request for a copy of the VIDEO under the Open Records Act. Manager Perea did grant that request and released a copy of the VIDEO which Channel 9 promptly televised. It not only was shown locally but national television stations picked it up and rebroadcasted the VIDEO.

Manager Perea testified that after the VIDEO’s release he was contacted by friends and colleagues across the nation criticizing the decision. He testified that there was a lot of media involvement critical of the decisions he made in this matter locally and nationally.

He testified that he was asked to discuss the rulings with the City Attorney, the Independent Monitor, the Police Chief, and the Mayor. The Independent Monitor [“IM”] criticized his decisions. [Res. Ex 121]. Manager Perea defended his decision to the IM in a two page response and concluded, “Viewing the video alone is inflammatory, however when the entirety of the situation is reviewed as it should be I believe I made the right decision.” [Pet. Ex. K].

Manager Perea either before his meeting with the above City Officials or during it was told there was new and material evidence that came forward as a result of the Channel 9 news broadcast of the incident. The two witnesses, Vanessa Shaver and her boyfriend, Hasan Aoutabachi, contacted the TV and consented to an interview.

The City Attorney advised Manager Perea that there were two witnesses who were present at the incident who were not known until after the TV broadcast. The City Attorney told Manager Perea that the investigation was not complete.

Manager Perea testified that he did not know what evidence or information the two witnesses had. But what was most important to him was the contention by the City that the investigation was not complete. He stated it did not matter what kind of

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evidence they had, good or bad, he rescinded the Orders because the investigation was incomplete.

He made the decision to rescind without regard to whether new information was “new and material evidence.” On August 19, 2010, Manager Perea rescinded the Order imposing penalties on Corporal Murr [Pet. Ex. P], and Officer Sparks. [Pet. Ex. O].

Shortly thereafter, August 31, 2010, Manager Perea resigned his position. And, as previously stated, in what was and is rare, the Manager was called in to discuss his decision with the Mayor, City Attorney, Independent Monitor and the Police Chief. It is not known what was discussed, but there must have been some consternation over the publicity caused by Manager Perea decisions. He said he was not forced to resign because of political or public pressure.

Based on the above evidence I find that there was no basis to rescind the Departmental Orders of July 19, 2010. No new evidence was presented to Manager Perea. The only evidence he had was that they had two new witnesses who came forth because they saw the VIDEO on television.

The first question then is whether this was new evidence or evidence not known because of the failure of the initial on scene investigation. If it was the inadequate nature of the investigation then the identities of the two new witnesses should not be considered new evidence.

Incomplete investigations should not be the basis for reopening an investigation. The problem with following Manager Perea’s path is that that door to completion of an investigation will never be closed. In all cases, there is always another witness to interview; other records to peruse; more analysis to be done on ad infinitum. To rescind an investigation will give the investigators a second bite of the apple to try and overcome their own inadequacies to the significant detriment of the officers who are left hanging while they await the results of a second investigation as happened here.

The second question to be determined is whether the statements of Ms. Shaver and Mr. Aoutabachi were relevant and material to warrant further investigation.

In listening to the testimony of Commander Lopez and reviewing his report, [Pet. Ex. J], and the supporting documents, it does not appear that the information they related – hearing Mr. DeHerrera yell out to the officers “That I am not resisting I am not resisting stop hitting me” – added anything to the investigation.

Even if it was new, it was not material to the investigation – other than to allow the Command to open a new and more expensive investigation to see if they can pin down a case against the Petitioners. The investigation centered on the VIDEO; the behavior of the officers in attempting to subdue Mr. DeHerrera and Mr. Johnson; and whether the Petitioners were untruthful in their reports and their interviews.

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Ms. Shaver’s and Mr. Aoutabachi’s testimonies were inconsequential and played no part in determining whether any of the alleged violations by the Petitioners should be or could be sustained.

The only value, if any, is that it caused a reopening of the file to investigate other

officers and to shed light on some of the inadequacies of the first investigation. It was not material in reaching a decision in the instant matter.

Notwithstanding my departure from the Majority Opinion on the Procedural issue, I join in and concur with the Majority Opinion as to the merits of the case.

s/Lawrence B. Leff Lawrence B. Leff Hearing Officer

DECISION

Officer Sparks Violation of RR-112.2, Commission of a Deceptive Act

The Panel finds that Petitioner Devin Sparks violated this section by willfully, intentionally, and knowingly departing from the truth verbally, making false reports and intentionally omitting information in conjunction with his reports and interviews with regard to his use of force while arresting Michael DeHerrera. The Panel also finds that the appropriate discipline for this violation is dismissal. Violation of RR-306, Inappropriate Force

The Panel finds that Petitioner Devin Sparks violated this section in conjunction with his use of excessive force while arresting Michael DeHerrera and that the appropriate discipline for this violation is thirty (30) days suspension without pay.

Corporal Murr Violation of RR-112.2, Commission of a Deceptive Act

The Panel finds Petitioner Corporal Murr did not violate this section in conjunction with reporting and interviews as to the arrest of Michael DeHerrera and that termination for this violation is not appropriate.

ORDER

The Departmental Order of Disciplinary Action in Case No. P2009 04015, dated March 25, 2011, is affirmed in part and is modified in part, as follows:

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1. The decision finding Petitioner Officer Sparks violated RR-112.2, Commission of a Deceptive Act, is sustained, and Officer Sparks is dismissed from the Classified Service for that violation; 2. The decision finding Petitioner Officer Sparks violated RR-306, Inappropriate Force, is sustained, and Petitioner is suspended without pay for thirty (30) days for that violation; 3. The decision finding Petitioner Corporal Murr violated RR-112.2, Commission of a Deceptive Act, is not sustained and his dismissal from the Classified Service for that violation is reversed. Corporal Murr shall be reinstated to his position with all back pay, seniority and other benefits due from the date of termination.

NOTICE OF APPEAL RIGHTS

Pursuant to Charter § 9.4.15(E), and Rule 12 § 11 (A) (1) and (2), the decision of

the Panel of the Hearing Officers may be appealed to either the Civil Service Commission, or directly to District Court. Any appeal to the Commission shall be initiated by filing a Notice of Appeal with the Commission, within fifteen (15) calendar days of the date noted on the certificate of service of the Hearing Officer’s decision by the Commission. Any appeal to District Court shall be initiated in accordance with the Colorado Rules of Civil Procedure currently in effect. Dated this 19th day of February, 2013 /s/ Susan J. Eckert /s/ Daniel C. Ferguson /s/ Lawrence B. Leff Chief Hearing Officer Hearing Officer Hearing Officer